State v. Sparks, 340 P.3d 688

Background

Police surveilled defendant after observing him load potting soil; they subpoenaed two years of EWEB power-subscriber and usage records for two residences and received monthly kilowatt usage data.
Detective Lowe smelled a strong odor of marijuana at one residence; OMMP records showed defendant was a registered caregiver (not a grower) for a registered grower (Kimm), and one residence (Ferry St.) was an OMMP-registered grow site.
Warrants to search Beech Place and East 32nd residences were issued based on an affidavit that included the EWEB usage data; searches uncovered marijuana plants, packaged marijuana, scales, shipping boxes, hashish, psilocin mushrooms, and an LSD vial.
Defendant consented to search the Ferry Street (registered) residence after officers discovered marijuana at Beech Place.
At trial, the jury convicted defendant on multiple drug counts and two counts of first-degree child neglect (allowing Kimm’s children, ages 11 and 14, to stay in immediate proximity to drug manufacturing); defendant moved to suppress the EWEB records, moved for acquittal on several counts, and objected to a jury instruction defining “control.”
On appeal, the court affirmed most rulings but reversed the child-neglect convictions (instructional error) and reversed the LSD-possession conviction (insufficient evidence); remanded for resentencing.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether defendant had a constitutionally protected privacy interest in utility subscriber/usage records obtained from EWEB without a warrant	State: utility records are third-party business records; no protected privacy interest (Johnson/Delp).	Defendant: utility usage reveals home activity and is akin to content deserving privacy protection.	Held: No Oregon-constitutional privacy interest in EWEB subscriber/usage records; warrant not required.
Whether the EWEB subpoena was unlawful because the ADA issued it without grand jury direction, requiring suppression	State: even if statutory error occurred, ORS 136.432 bars suppression of evidence obtained in statutory-violation cases unless constitutional or evidentiary exceptions apply.	Defendant: subpoena issuance violated ORS 136.563 and thus was unauthorized; evidence should be excluded.	Held: Court need not decide prosecutor’s authority; under ORS 136.432, statutory violation alone does not mandate exclusion; records admissible.
Whether affidavit (including usage data and officer’s observations) established probable cause for search warrants	State: combined facts (high power use, officer experienced in grow ops, smell of marijuana, prior conviction) support probable cause (Lynch/Darroch).	Defendant: facts are consistent with lawful activity; usage data insufficient; subpoena unlawfully obtained records taint affidavit.	Held: Affidavit established probable cause; warrant issuance proper; prior suppression/contention rejected.
Whether defendant had "control" of Kimm’s children for first-degree child neglect and whether jury instruction on "control" was correct	State: control may be shown by authority over premises; defendant exercised control of the residence and therefore could control the children’s presence (relied on Mack/Reiland).	Defendant: he lacked custody/control; jury instruction equating control of premises with control of child misstated law; insufficient evidence linking him to LSD.	Held: Instruction misstated law — "control of premises" is not per se "control of a child." Because the incorrect instruction could have allowed a legally erroneous verdict, convictions for first-degree child neglect reversed and remanded; LSD-possession conviction reversed for insufficient proof.

Key Cases Cited

State v. Johnson, 340 Or. 319 (no Oregon privacy interest in third-party cell phone usage records)
State v. Delp, 218 Or. App. 17 (no privacy interest in ISP subscriber information; follows Johnson)
State v. Mack, 219 Or. App. 119 (discusses relationship between control of premises and control of child; relied on below but disavowed here)
State v. Reiland, 153 Or. App. 601 (analyzes "allow" vs "permit" in related child-welfare statutes)
State v. Lynch, 119 Or. App. 97 (utility usage plus officer smell supported probable cause for grow-site search)
State v. Darroch, 117 Or. App. 185 (similar holding on power usage and covered windows supporting probable cause)
State v. Oare, 249 Or. 597 (mere proximity to drugs insufficient to prove possession when others also proximate)
Wallach v. Allstate Ins. Co., 344 Or. 314 (standard for reversible instructional error)